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98% of EU rules are decided via Comitology and delegated acts, rather than via legislation. This shows the importance of these decisionmaking processes. The procedures are complex with many exceptions and derogations. Academic books have been published on the subject: they explain the “what” comitology and delegated acts are, but are silent on “how to” effectively operate in these processes.
What European affairs practitioners need is a manual explaining each step of the different processes with diagrams, concrete cases, practical explanations. This is exactly what the Handbook on secondary legislation is all about: a book designed by practitioners for practitioners.
An indispensable tool to navigate efficiently through the labyrinth of decision-making procedures.
ABOUT THE AUTHORS
Former Associate Partner of EPPA,
Daniel Guéguen has dedicated his whole working life to European public affairs. Daniel set up several businesses specialised in European affairs and after disposing of them in 2012, he founded PACT European Affairs, specialised in the post-Lisbon comitology procedures. Alongside this activity,
Daniel Guéguen has published books that have been translated into several languages. Via articles, blogs and tweets widely circulated in international press, he has campaigned for a more operational EU that is closer to citizens. Building upon the educational nature of his books on the EU, Daniel is still today involved in many university programmes, in the USA (Harvard, Georgetown) and across Europe (ULB, Paris Sciences-Po, EDHEC, HEC, INSEAD), and at at the College of Europe in Bruges and Natolin. For his European activities, Daniel Guéguen was in 2005 awarded the rank of “Chevalier” in the order of the Légion d’honneur.
Vicky Marissen’s legal background and long-standing experience in European Public Affairs make her the expert capable of assisting companies, trade associations and organisations active in highly regulated sectors such as food, pharmaceuticals and health, helping them close the procedural gap and regain impact on the EU decision-making process.
Besides providing legal and procedural input on files and assistance in developing and deploying engagement strategies, Vicky provides support in communicating often technical arguments in an understandable form to different target audiences (public, private, media, etc.).
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Veröffentlichungsjahr: 2024
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The online version of this book is available on the Lexnow legal platform at www.lexnow.io.
© 2023, Anthemis s.a
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ISBN: 978-2-8072-1113-1
Legal deposit : D/2023/10.622/78
About the authors
Daniel Guéguen is an Associate Partner at EPPA and former Chairman and Head of Lobbying at PACT European Affairs. In a public affairs career spanning 40 years, Daniel has held a number of key posts, including Director General of the European Sugar Federation and Secretary General of COPA-COGECA, representing European farmers. In 1996, Daniel created the consultancy CLAN Public Affairs and ETI (European Training Institute), before co-founding PACT European Affairs in 2012 with Vicky Marissen. A prolific commentator in the press, he is currently a guru blogger for Euractiv and regularly contributes to EU media. Daniel also has long-standing academic experience, frequently delivering lectures and seminars at prestigious international universities, including the College of Europe (where he is Professor of Comitology), ULB and Maastricht University.
Vicky Marissen is a Partner at EPPA and former Managing Director of PACT European Affairs, a training/consultancy firm specialising in EU decision-making, delegated and implementing acts in particular. She has a legal background and has been active in EU public affairs for 15 years. Over this period she has built up expertise and experience with regard to ‘comitology’ and EU decision-making procedures in general. She has delivered advice and analysis to clients on lobbying strategies. Vicky is renowned as a skilled educator and trainer, able to communicate clearly and transfer know-how on complex topics. Since 2015 she has been Visiting Professor at the College of Europe in Bruges and Natolin, and is co-author of ‘The New Practical Guide to the EU Labyrinth’ and ‘EU Financial Services: The ins and outs of the Decision-making Process’.
The authors wish to thank Steven Corcoran for his invaluable assistance
with the preparation and drafting
of this Handbook on EU Secondary Legislation.
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In the procedural jungle, you need a compass
Post-Lisbon secondary legislation is a procedural jungle. And just like in the jungle, a compass is necessary to avoid getting lost. Secondary legislation affects the lives of lobbyists all the time. They are confronted with it every day. So now is the time to start learning about it!
This Handbook does not aim to make you a specialist, but rather to help you understand the architecture of the Regulatory Procedure with Scrutiny, delegated acts and implementing acts. At each step of every file, you need to know which stage of the procedure you are at and what comes next.
Without these basics, it will be impossible to lobby effectively – because if you do not know what procedure applies, you simply will not know who your interlocutor is. “Whom should I contact at this stage? The Commission? The Council? The Parliament? An Expert Group? A committee?” A compass is indeed vital!
When writing this Handbook, our motto from start to finish was:
“KEEP IT SIMPLE!”
Contents
Part I. Introduction: the Handbook in 2020
Part II. History of secondary legislation
Part III. Why secondary legislation is more
Part IV. Overview of EU secondary legislation today
Part V. Regulatory Procedure with Scrutiny
Part VI. Delegated acts
Part VII. The ‘Lisbonisation’ Process
Part VIII. Implementing acts
Part IX. Secondary legislation in the EU courts
Part X. Post-Lisbon European Lobbying
PART I
INTRODUCTION
THE HANDBOOK IN 2023
1. Secondary legislation – A topic in constant flux
It has been nine years since we published the original Handbook on EU Secondary Legislation. Selling hundreds of copies, it proved an invaluable tool for many individuals, companies and organisations seeking to master the labyrinthine system of delegated acts and implementing acts.
Secondary legislation, however, is not static. Since the entry into force of the Treaty of Lisbon on 1 December 2009, it has been evolving all the time, seeing important changes in the past few years especially.
Once a purely legal topic, secondary legislation now has a strong political dimension, sensitive to the shifting power balance between the EU Institutions and to the attentions of an increasingly vigilant European civil society.
With this in mind, the time has come for an updated Handbook. A lot has happened in recent years:
The previous Juncker Commission introduced the concept of 'Better Regulation' and overhauled the Commission's internal working methods, two facts that impacted heavily on secondary legislation.
A new Commission led by President von der Leyen has arrived in office.
An Inter-institutional Agreement on Better Law-making has entered into force, making key innovations to the framework of delegated and implementing acts.
The United Kingdom has left the EU, thus altering the practicalities of voting in the European Parliament, Council and comitology committees.
All these developments and more will be covered. Retaining the visual, educational style of previous versions, the latest Handbook will provide readers with a detailed overview of how EU secondary legislation works in 2023, what has changed and what lies ahead.
2. Secondary legislation – The label remains the same
As explained in the old Handbook, we used to employ the term ‘comitology’ to refer to the fast-track procedure by which the Commission exercises its implementing power to amend, supplement or give effect to the provisions of basic EU legislation (referred to as ‘legislative acts’ throughout this Handbook), under the supervision of committees composed of national experts.
But then the Treaty of Lisbon changed everything. Suddenly, the word ‘comitology’ was no longer sufficient, because there are no committees involved in adopting delegated acts.
In the interest of simple communication, we decided on an alternative wording to cover both types of post-Lisbon measure: secondary legislation.
The term is still valid for two main reasons:
It fits neatly within the hierarchy of the EU’s legal framework: at the top sit the Treaties; below are legislative acts (i.e. ‘primary legislation’), adopted by the EU Institutions as Regulations and Directives; and finally, at the bottom, we have ‘secondary legislation’, i.e. delegated and implementing acts.
Moreover, it is recognised in certain EU Member States (e.g. Ireland), where Acts adopted by the national parliament are frequently amended or implemented by way of ‘secondary legislation’.
In 2020, many officials, academics and stakeholders across Brussels (and beyond) have adopted the term ‘secondary legislation’ and now use it regularly – proof of the success of our Handbook!
PART II
HISTORY OF SECONDARY LEGISLATION
FROM ROME TO LISBON – AND BEYOND
1. Secondary legislation timeline – how we got to where we are today
A. Making rules on the fast track – The Genesis of Comitology
Comitology was born out of the EU’s Common Agricultural Policy.
As mentioned in the introduction, the term ‘comitology’ has been commonly used to refer to the fast-track procedure whereby committees composed of representatives from every Member State supervise the Commission in the exercise of its implementing powers. Comitology kicks in during the third stage of EU decision-making – that is, after a legislative act has been proposed and adopted. The committee meetings are chaired by a representative of the Commission who, importantly, also decides the agenda of each meeting.
It is fair to say that comitology and the Common Agricultural Policy (CAP) were made for each other. The system worked extremely well, facilitating broad agreement among stakeholders in a wide range of areas (sugar, cereals, meat, wine, etc.) and with very few measures rejected by the Member States.
Important elements of the CAP were determined through the committees, including:
Amount of storage levies;
Fixing of export refunds;
Rules of application for quota transfers;
Fixing of production levies.
Dispute over the Château label
In 2012, U.S. wine producers put pressure on the Commission to allow them to use the famous ‘Château’ label (traditionally seen as symbolising quality French-produced wine). The Commission decided to authorise this, preparing a draft proposal which was then submitted to the Committee of Member State representatives. France, Spain and Italy were opposed to the draft but in this case they were marginalised within the Committee, with little or no support from other Member States. To stop a proposal, a qualified majority vote (QMV) is required – very difficult to achieve in most cases!
B. 8 main stages in the eventful life of secondary legislation
1. Single European Act 1987: Recognising the success of comitology
Comitology developed rapidly during the 1970s and 1980s, becoming a success story in many sectors of Community policy-making. Before long, fields such as environment, consumer protection, transport and Single Market regulation were beginning to see the arrival of comitology committees and fast-track rule-making.
In view of this fantastic growth, the Single European Act of 1987 did the logical thing and formally recognised comitology. At the time, comitology was composed of 3 types of committee: advisory, management and regulatory. The regulatory committees notably played a vital role in laying the foundations for the revived Single Market.
For the single market, comitology was still, at this time, a fast-track procedure involving the Commission, Council and Member State committees. There was no role for the European Parliament, which in 1987 was not even a co-legislator of Community rules.
2. Maastricht Treaty 1993: The European Parliament fights for its rights
Up to this point, the Commission and the Council were the two comitology players, firmly in the driving seat. However, this changed in 1993 with the Maastricht Treaty, which altered the balance of power by making the institutional triangle a reality. Under Maastricht, the European Parliament (EP) finally became a co-legislator of EU rules in important policy areas, on an equal footing with the Council. Ever since, the EP has been seeking a definitive role in the adoption of secondary legislation.
3. The 1999 decision: A role for the EP, but a marginal one
In the years after Maastricht, the EP’s demands to be more involved in comitology procedures were frequently ignored by the Council and the Commission. Frustrated by this unfairness, Members of the European Parliament (MEPs) began to bang their fists on the table.
By the end of the 1990s, the Commission and Council realised that some kind of compromise had to be reached. This was also a good opportunity to simplify the comitology procedures, making them more transparent.
What did Decision 1999/468 achieve?
Reduced the number of comitology procedures from 7 to 4.
Increased the role of the EP by granting it a right of scrutiny with regard to implementing measures.
The EP obtained a general right of information.
Improved transparency by obliging the Commission to set up a register of comitology committees.
Obligation to publish a list of all committees as well as an annual report on the workings of comitology.
The 1999 reform was not a full success
For example, in a 2005 resolution concerning dangerous substances in electronic equipment, the EP complained that it had not been informed of a measure until six weeks after the comitology committee voted on it;
Moreover, the EP asserted that this was not an isolated case. Already we can see that, despite the 1999 reform, the EP was still being kept in the dark on comitology.
4. Draft Constitutional Treaty 2004: Equality for the EP?
As mentioned before, the 1999 decision did not bring an end to the battle for power, amounting rather to “a temporary truce”, in the words of a Commission official at the time. The EP continued to push for a bigger piece of the action.
In this context, the draft Constitutional Treaty of 2004 envisaged a fundamental reform of comitology, proposing equality of status between the EP and the Council in terms of overseeing the Commission’s implementing powers.
However, in mid-2005 the draft Constitutional Treaty was rejected by the French and Dutch in national referenda and therefore could not be ratified. The EP’s goal appeared to be out of reach.
5. The 2006 reform: Picking up the pieces
Despite this setback, MEPs refused to lie down. The EP renewed its pressure on the Commission and Council, most notably by using its budgetary power to threaten to freeze funds for certain comitology committees.
Following further negotiations, a decision was adopted in July 2006, reshaping the architecture of comitology in order to reinforce the EP’s role as co-actor, while at the same time attempting to maintain the fast-track technical process that comitology was always intended to be.
The greatest legacy of the July 2006 Decision was a Community legal order with 3 different levels:
Level 1: Legislative acts (essential and general provisions);
Level 2: Quasi-legislative measures
(non-essential and general provisions);
Level 3: Comitology measures stricto sensu (technical, administrative provisions).
The 2006 decision introduced a new procedure – the Regulatory Procedure with Scrutiny (RPS) for adopting quasi-legislative measures. The RPS established a process that was more complex than the ‘old’ regulatory procedure and, for the first time, gave the EP a right of objection.
Although this did not create full equality between the institutions (thus falling short of the lofty aims of the draft Constitutional Treaty), it was still a substantial increase in parliamentary power, compared to the limited rights MEPs won back in 1999.
To integrate the RPS into Community legislation, some 250 Directives and Regulations needed to be revised, in order to align them with the new framework. This process is technically referred to as ‘screening and alignment’.
